Police v Laki [2011] WSSC 98 (11 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TOETU LAKI male of Lalomalava and Lefagaoalii Safune.
Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Defendant unrepresented.

Sentence: 11 July 2011

SENTENCE

The defendant here has pleaded guilty to a charge of attempted rape which carries a maximum penalty at law of 10 years in prison. When the police summary of facts was put to him he disputed parts of it saying that he was friends with the complainant and that she had invited him to visit her on the evening in question. The prosecution were accordingly compelled to call the complainant and they also called her mother as a supporting witness to testify as to what actually happened.

At that hearing the defendant elected not to testify but he continued denying the evidence of the complainant and her mother. After giving the matter due consideration I ruled that the defendants denials had no basis or credibility. And commented that the defendant may not have remembered the details of the incident because he was under the influence of alcohol. The court also found that while the complainant knew the defendant as a friend of her brothers they were not in any pre-incident relationship and nor did she invite him to come visit her that evening. As I said in the ruling the complainants house would be a strange place for a lovers tryst given that her parents and her siblings were also asleep in the same premises. Accordingly I was satisfied that the defendant in a fit of drunken lust went to the complainants house in the early hours of the morning of the day in question intending to have sex with the complainant. And when the complainant struggled and resisted the defendants actions escalated into an attempt to have his way with her without her consent.

The facts as contained in the police summary of facts are that the complainant was asleep in her mosquito net when the defendant entered it and lay on top of her whispering "I love you." The complainant said the defendant smelt strongly of alcohol. She turned on the light of her mobile phone and saw that it was the defendant lying on top of her. When she struggled he covered her mouth with his hands and put her bedsheet over her. She also said he tried to pull her pants down but she resisted and eventually she was able to push the defendant off and scream out for her mother. When help came, the defendant ran away. A police complaint was lodged the next day and after investigations the defendant was identified and charged.

The defendant at the time of the offending was 27 years of age and the complainant 16 years old. A suppression order has been issued in respect of the complainants details and her village of residence and as for the defendant his personal details are that he is a planter and is single. All these events have lead up to the defendants appearance today for sentence on a charge of attempted rape of the complainant.

The offence of attempted rape is serious as evidenced by its maximum penalty aforesaid of 10 years in prison. The offending is aggravated by the fact that this is a home invasion offence involving a trespass by the defendant onto the complainants family property in the early hours of the morning and into the mosquito net where the complainant was sleeping. This sort of behaviour is known in our custom as "moetolo." People generally and young girls in particular are entitled to feel safe and protected in their own homes. The defendant violated this sanctuary. The offending is also aggravated by the fact that the defendant used violence to try and overcome the complainant. Only the complainants struggles and the defendants condition prevented this becoming a rape. It also appears from the testimony of the complainant that subsequent to this offence while the defendant was awaiting trial on this matter he bumped into her in a location in town and made threats against her. He has not been charged separately with that matter but in my view that sort of behaviour also aggravates this defendants offending.

Considering all these matters an appropriate start point for your sentencing is 8 years in prison. However you are entitled to certain deductions by law and I will now make these. Firstly you are a first offender, you have a clean record and for that I deduct a period of 12 months or 1 year leaving a balance of 7 years. Normally an offender who pleads guilty is also entitled to credit for his guilty plea and usually I allow one-third of a defendants sentence for that because the guilty plea is an expression of remorse. It saves the courts valuable time and it saves the complainant in a sexual case having to testify and relive the incident. In your case however your guilty plea was only entered according to the file on the day that this matter was set down for trial and after all the witnesses had appeared and a panel of assessors had been convened to try you on your original not guilty plea. So in terms of the resources and time of the court those were only spared to a certain extent. And the effect of your guilty plea to a large extent has also been negated by you challenging the summary of facts because that necessitated the calling of the complainant and her mother as witnesses. Instead of the normal one-third discount for a guilty plea then I only allow a 1 year deduction from your penalty for your guilty plea. That leaves a balance of 6 years of sentence.

Normally also a further deduction is made for an apology that is issued by a defendant to a complainant or to the complainants family in accordance with our "tu" and "aganu'u." But the probation report says in this case that the apology tendered by your brother on your behalf was rejected by the complainants family. And even though you did apologise to the court this morning, it is not the court to whom you really should apologise. I therefore in these circumstances can give you no credit for an apology to the complainant or the complainants family.

You have also told me this morning that you have learnt a lesson and you are remorseful for this offending and you are praying to God for guidance. That is a good thing Toetu I urge you to continue to do that but before repentance takes effect you must do time for your crime. There are no other factors Toetu in your favour that entitle you to any further discount from your sentence. For this matter you will be convicted and sentenced to 6 years in prison. Your remand in custody time is to be deducted from that sentence.

JUSTICE NELSON